[2012] KEHC 810 (KLR)
The court found that the application for injunction was fatally defective because it only sought temporary injunctions pending the hearing and determination of the application itself, not the suit. As such, the court lacked jurisdiction to grant the orders sought. Additionally, on the merits, the court found that...
Source-derived case information.
- Citation
- [2012] KEHC 810 (KLR)
- Parties
- Plaintiff: Donald Mutua Muinde; Plaintiff: Nancy Wagaki Mutua; Defendant: Kenya Commercial Bank; Defendant: Baseline Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 665 of 2010
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- CM Njagi, GV Odunga
- Legal Topics
- Injunctions, Statutory Notices, Service of Process, Mortgagee Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Donald Mutua Muinde
Plaintiff
Nancy Wagaki Mutua
Plaintiff
Kenya Commercial Bank
Defendant
Baseline Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants were served with a mandatory statutory notice for sale as required by law.
- 2 Whether the application for injunction is fatally defective for failing to seek orders pending the hearing and determination of the suit.
Ratio Decidendi
The court found that the application for injunction was fatally defective because it only sought temporary injunctions pending the hearing and determination of the application itself, not the suit. As such, the court lacked jurisdiction to grant the orders sought. Additionally, on the merits, the court found that the applicants had been duly served with the statutory notice as required by Section 153(c) of the Registered Land Act, as evidenced by the respondents' affidavit and supporting documents. The address used for service was the same as that used for prior communications between the parties. Consequently, the application was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application for injunction is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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DONALD MUTUA MUINDE………......………………………...1STPLAINTIFF
NANCY WAGAKI MUTUA……….….………………………...2ND PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK………..…………………….1ST DEFENDANT
BASELINE LIMITED……………………...……………..…..2ND DEFENDANT
RULING
This is an application for an injunction. It is dated 4th October, 2010 and taken out under Order XXXIX Rules 1 and 3 of Civil Procedure Rules. The Applicants thereby seek an injunction restraining the Respondents from selling the suit property pending the hearing of the application.
The application is supported by the annexed affidavit of Nancy Wagaki Mutua, the 2nd Applicant herein, and is based on the grounds that the Applicants have never been served with a mandatory statutory notice for sale and therefore the advertised sale by public auction would be illegal, unlawful and otherwise fraudulent.
On their part, the Respondents oppose the application and state that they duly served the statutory notice as by law required.
With leave of the court, the parties herein filed written submissions which I have considered along with the pleadings. In the first instance, I note that the application is fatally defective as it seeks temporary injunctions pending the hearing and determination of this application which is now part. It does not seek any injunction orders pending the hearing and determination of the suit. In the absence of such a prayer, this court lacks the jurisdiction to grant it. Since the application has now been heard and determined, there is nothing more for the court to do with regard to this application.
Even if there was anything else for the court to do, I note from the Respondent’s replying affidavit that a statutory notice dated 1st December, 2009, a copy of which is attached, was duly issued and served upon the Applicants by registered post the address used is the same one which the parties had been using for communication between them. For that matter, Section 153 (c) of the Registered Act (Cap 300, Laws of Kenya) is to the effect that-
“153. A notice under this act shall be deemed to have been served
on or given to any person-
(a)…
(b)…
(c)if sent by registered post to him at his last known postal address or at his last known postal address in Kenya.”
This was followed by a visit by the 2nd Applicant to the Respondent’s offices on an undisclosed date, after which she made an offer by a letter dated 9th April, 2010.
On a balance of probability, I would find that the Applicants were duly served under Section 153 of the Registered Act.
Being of the above persuasion, I find that the application is fatally defective and it is hereby dismissed with costs.
L. NJAGI
JUDGE
DATEDand DELIVERED at NAIROBI this 5th day of November, 2012.
ODUNGA
JUDGE